B-8353, FEBRUARY 23, 1940, 19 COMP. GEN. 748

B-8353, FEBRUARY 23, 1940, 19 COMP. GEN. 748

CONTRACTS FOR CARRYING THE MAILS - INAPPLICABILITY OF 8-HOUR LAW AND FAIR LABOR STANDARDS ACT CONTRACTS FOR CARRYING THE MAILS IN MOTOR VEHICLES, BETWEEN VARIOUS POINTS SUCH AS POST OFFICES, RAILROAD STATIONS, ETC., ARE EXCEPTED FROM THE REQUIREMENTS OF THE 8-HOUR LAW OF JUNE 19, 1912, 37 STAT. 137, BY SECTION 2 THEREOF WHICH PROVIDES: "THAT NOTHING IN THIS ACT SHALL APPLY TO CONTRACTS FOR TRANSPORTATION BY LAND OR WATER, OR FOR THE TRANSMISSION OF INTELLIGENCE.' CONTRACTS FOR CARRYING THE MAILS MAY NOT PROPERLY REQUIRE COMPLIANCE BY THE CONTRACTORS WITH THE FAIR LABOR STANDARDS ACT OF 1938, 52 STAT. 1060.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL, FEBRUARY 23, 1940:

I HAVE YOUR LETTER OF FEBRUARY 1, 1940, AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH A COPY OF A PENDING ADVERTISEMENT INVITING PROPOSALS FOR CARRYING THE MAILS IN REGULATION PANEL- OR SCREEN-BODY MOTOR VEHICLES FOR THE FOUR-YEAR TERM BEGINNING JULY 1, 1940. YOUR ATTENTION IS PARTICULARLY INVITED TO PARAGRAPH 75, READING AS FOLLOWS:

"THE CONTRACTOR WILL BE REQUIRED TO PERFORM THE SERVICE IN CONFORMITY WITH THE PROVISIONS OF THE ACT OF JUNE 19, 1912--- EIGHT HOUR LAW--- (37 STAT. 137); ALSO TO COMPLY WITH THE PROVISIONS OF THE FAIR LABOR STANDARDS ACT OF 1938, APPROVED JUNE 25, 1938.'

IN VIEW OF THE POSSIBILITY OF EFFECTING ECONOMIES BY ELIMINATING FROM ADVERTISEMENTS INVITING PROPOSALS FOR FOUR-YEAR TRANSPORTATION CONTRACTS OF THIS CLASS THE PROVISIONS OF THE FAIR LABOR STANDARDS ACT OF 1938, ALSO THE PROVISIONS OF THE EIGHT-HOUR LAW, IT WILL BE APPRECIATED IF YOU WILL FURNISH THIS DEPARTMENT WITH AN EXPRESSION OF YOUR VIEWS AS TO THE APPLICABILITY OF THESE TWO ACTS TO FOUR-YEAR MAIL TRANSPORTATION CONTRACTS OF THE CLASS COVERED BY THE PENDING ADVERTISEMENT.

INASMUCH AS THE ADVERTISEMENT IS PENDING AN EARLY DECISION IN THIS MATTER WILL BE APPRECIATED.

IT IS NOTED FROM THE COPY OF THE PENDING ADVERTISEMENT THAT PROPOSALS HAVE BEEN INVITED---

* * * FOR CARRYING THE MAILS OF THE UNITED STATES IN THE REGULATION PANEL - OR SCREEN-BODY MOTOR VEHICLES PRESCRIBED BY THE DEPARTMENT, BETWEEN POST OFFICES, POST OFFICE AND RAILROAD STATIONS, THE POST OFFICE AND TERMINAL RAILWAY POST OFFICES, POST OFFICE AND STEAMBOAT LANDINGS, MAIL STATIONS, THE POST OFFICE AND POINTS OF EXCHANGE WITH ELECTRIC OR CABLE CARS, AND BETWEEN THE SEVERAL POST OFFICES, RAILROAD STATIONS, TERMINAL RAILWAY POST OFFICES, STEAMBOAT LANDINGS, MAIL STATIONS, OR POINTS OF EXCHANGE WITH ELECTRIC OR CABLE CARS, AS PRESCRIBED HEREIN; DURING THE TERM BEGINNING JULY 1, 1940, AND ENDING JUNE 30, 1944, ON THE ROUTES SHOWN AT THE FOLLOWING ITIES: * * *

THE 8-HOUR LAW OF JUNE 19, 1912, 37 STAT. 137, PROVIDES IN SECTION 1 AS FOLLOWS:

THAT EVERY CONTRACT HEREAFTER MADE TO WHICH THE UNITED STATES, ANY TERRITORY, OR THE DISTRICT OF COLUMBIA IS A PARTY, AND EVERY SUCH CONTRACT MADE FOR OR ON BEHALF OF THE UNITED STATES, OR ANY TERRITORY, OR SAID DISTRICT, WHICH MAY REQUIRE OR INVOLVE THE EMPLOYMENT OF LABORERS OR MECHANICS SHALL CONTAIN A PROVISION THAT NO LABORER OR MECHANIC DOING ANY PART OF THE WORK CONTEMPLATED BY THE CONTRACT, IN THE EMPLOY OF THE CONTRACTOR OR ANY SUBCONTRACTOR CONTRACTING FOR ANY PART OF SAID WORK CONTEMPLATED, SHALL BE REQUIRED OR PERMITTED TO WORK MORE THAN EIGHT HOURS IN ANY ONE CALENDAR DAY UPON SUCH WORK; * * *

SAID LAW PRESCRIBES PENALTIES FOR ITS VIOLATION AND PROCEEDINGS FOR RELIEF FROM SUCH PENALTIES, IF PROPER. IT IS FURTHER PROVIDED IN SECTION 2 THEREOF---

THAT NOTHING IN THIS ACT SHALL APPLY TO CONTRACTS FOR TRANSPORTATION BY LAND OR WATER, OR FOR THE TRANSMISSION OF INTELLIGENCE, * * *

WITH RESPECT TO THE APPLICABILITY OF THE 8-HOUR LAW, SUPRA, TO MAIL TRANSPORTATION CONTRACTS, IT IS TO BE NOTED THAT WHILE THE FIRST SECTION OF SAID LAW PROVIDES THAT "EVERY CONTRACT" THEREAFTER MADE FOR OR ON BEHALF OF THE UNITED STATES, INVOLVING THE EMPLOYMENT OF LABORERS OR MECHANICS, SHALL CONTAIN THE STIPULATION AS TO 8-HOUR LABOR, THE SECOND SECTION THEREOF PROVIDES THAT "NOTHING IN THIS ACT" SHALL APPLY TO CONTRACTS FOR "TRANSPORTATION BY LAND OR WATER," OR TO CONTRACTS FOR THE "TRANSMISSION OF INTELLIGENCE.' HENCE THERE IS FOR DETERMINATION WHETHER CONTRACTS OF THE CHARACTER HERE INVOLVED FALL WITHIN EITHER OF THE ABOVE EXCEPTIONS ENUMERATED IN SECTION 2, SUPRA. IN OTHER WORDS, ARE THESE CONTRACTS FOR "TRANSPORTATION" OR FOR THE "TRANSMISSION OF INTELLIGENCE.' THE TERM "TRANSPORTATION" IS DEFINED BY WEBSTER'S NEW INTERNATIONAL DICTIONARY AS AN "ACT OF TRANSPORTING, OR STATE OF BEING TRANSPORTED," AND THE TERM "TRANSMISSION" IS DEFINED AS AN "ACT OF TRANSMITTING, OR STATE OF BEING TRANSMITTED; AS, THE TRANSMISSION OF LETTERS, NEWS, AND THE LIKE * * *.' ALSO,"INTELLIGENCE" IS DEFINED AS " INFORMATION COMMUNICATED, NEWS, NOTICE, ADVICE.'

IN VIEW OF THE FOREGOING IT SEEMS CLEAR THAT CONTRACTS OF THE CLASS WHICH WILL BE INVOLVED IN THE ADVERTISEMENT UNDER CONSIDERATION--- COVERING CARRIAGE OF MAIL BETWEEN VARIOUS POINTS--- ARE EXCEPTED FROM THE REQUIREMENTS OF THE 8-HOUR LAW BY SECTION 2 THEREOF. ACCORDINGLY, A REQUIREMENT RESPECTING COMPLIANCE WITH THE 8-HOUR LAW SHOULD NOT BE INCLUDED IN SUCH ADVERTISEMENTS OR IN THE CONTRACTS RESULTING THEREFROM.

WITH RESPECT TO THE FAIR LABOR STANDARDS ACT OF 1938, 52 STAT. 1060, IT MAY BE STATED THAT THE SAID ACT NEITHER AUTHORIZES NOR REQUIRES THAT GOVERNMENT CONTRACTS CONTAIN STIPULATIONS AS TO COMPLIANCE THEREWITH AND SUCH STIPULATIONS ARE NOT NECESSARY TO THE ACCOMPLISHMENT OF THE LEGISLATIVE PURPOSES OF THE APPROPRIATION FOR CARRYING THE MAILS. THE PRESENT QUESTION IS NOT UNLIKE THOSE CONSIDERED IN THE DECISIONS OF THIS OFFICE PUBLISHED AT 17 COMP. GEN. 37; 18 ID. 285. BASED ON THE PRINCIPLES THEREIN STATED IT MUST BE HELD THAT CONTRACTS FOR CARRYING THE MAILS MAY NOT PROPERLY REQUIRE COMPLIANCE BY THE CONTRACTORS WITH THE FAIR LABOR STANDARDS ACT OF 1938.